R. v. Burke

Ontario Court of Justice

Date: July 6, 2018

Court File No.: 4817-998-17-15006026 (Toronto Region Old City Hall)

Between:

Her Majesty the Queen

— and —

Andrew Burke

Before: Justice Heather Pringle

Heard on: May 11, 2017 and June 22, 2018

Reasons for Judgment released on: July 6, 2018

Counsel:

• David Mitchell, for the Crown
• Anthony Robbins, for the accused Andrew Burke

PRINGLE J.:

Overview of the Facts

[1] Mr. Burke, in the throes of a crack cocaine binge, committed eight bank robberies over the course of one short week. The bank robberies all bore similar hallmarks to one another, and Mr. Burke took no pains to disguise his identity in committing them. He used no weapon and no one was physically injured. Despite these factors, the offences remain quite serious and had significant impact on the victims involved.

[2] This spree of bank robberies began on July 21st, 2017. Mr. Burke obtained $1000 by passing a note to a shocked BMO bank teller, that read "This is a robbery I have a gun give me 20s 50s 100s". On July 24, 2017, he robbed a BMO bank of $4000 by passing the teller a note that read "This is a robbery don't panic I have a gun I'm not afraid to use it", which demanded $4000 in 100s, and ended by saying "no funny stuff move it". The next day, July 25, 2017, Mr. Burke robbed a CIBC by passing the pregnant teller a note that read "I have a gun this is not a joke". The teller, pleading with him not to do anything, gave him $2180. Because of her pregnancy and the stress of being robbed, EMS had to attend and assess her.

[3] On July 26, 2017, Mr. Burke robbed a TD bank of $400 by passing a note that read "I have a firearm this is not a joke". On the same day, he robbed a Bank of Nova Scotia of $400 by, again, passing a note that stated "this is a robbery I have a gun". When he wasn't taken seriously at first, he touched his waistband as though he had a gun. The next day, July 27, 2017, Mr. Burke committed two bank robberies. He first robbed a bank of Nova Scotia of $420 by passing the same note he used in the first robbery, asserting that he had a gun and demanding 50s, 20s, 100s. When the teller failed to take him seriously, Mr. Burke touched his waistband, like he had a gun, and got the money. He then robbed an RBC, using the same type of note, and obtained $400.

[4] Finally, on July 28, 2017, Mr. Burke robbed an RBC of $300. He initially demanded $2000, using a note which stated he had a gun. The teller advised only $300 was available. Mr. Burke, after unsuccessfully trying to obtain at least $500, advised the teller that he was sorry, and that he was desperate. He was arrested later the same day.

[5] As stated above, no one was physically hurt in any of the robberies and no weapon was ever seen or used. When Mr. Burke was arrested, shortly after committing the last bank robbery, he was not in possession of any weapon.

[6] At an early stage in these legal proceedings, Mr. Burke instructed his counsel to pursue a guilty plea. The first judicial pretrial was held in November 2017, at which point Mr. Burke had firmly committed to pleading guilty. Although the plea did not occur until May, 2018, this delay was not indicative of any waiver in his instructions. On May 11, 2018, Mr. Burke pled guilty to four counts of robbery, with facts pertaining to the other four robberies read in on consent.

Evidence Tendered at Sentencing

[7] Mr. Mitchell, for the Crown, tendered two victim impact statements into evidence. These statements establish psychological trauma, loss of confidence at work, fear of the accused and anxiety-related behaviours. One of these victims, deciding the risk and trauma of being robbed was not worth it, left the field of banking. The other victim, acutely and personally aware of the risk his job placed his life in, decided to increase his life insurance.

[8] Mr. Burke's criminal record was made an exhibit on sentencing. It contains numerous findings of guilt and convictions, beginning in 1982 when Mr. Burke was but nineteen years old. It is obvious that drug addiction is the architect of this record. Between 1982 and 1988, Mr. Burke committed fifteen offences, largely property-related, for which he received probation or reformatory range sentences. He also committed two robberies, in 1984, and received a reformatory sentence of six months concurrent with probation for each count.

[9] In 1989 Mr. Burke received his first penitentiary sentence, twenty eight months in custody, for robbery. By 1996, the minor property-related crimes largely ceased, and Mr. Burke began to incur repeated robbery convictions. Isolating the robbery counts from the rest of Mr. Burke's criminal record shows:

• In 1984 he received 6 months jail for two counts of robbery;
• In 1989 he received 2 years 4 months for robbery;
• In 1992 he received 2 years for robbery and disguise with intent;
• In 1997 he received 5 years globally (when factoring in 5½ months presentence custody), for two counts of robbery and disguise with intent;
• In 2001 he received 3½ years for robbery and use imitation firearm;
• In 2005 he received 1 year on top of 92 days pre-sentence custody for robbery and theft under;
• In 2007 he received 2 years for robbery;
• In 2008 he received 3 years for robbery and use imitation firearm (although CPIC notes this sentence as 2 years, the transcript reveals the global sentence was 3 years, less one year presentence custody);
• In 2013 he received a global sentence of approximately 3½ years, (when factoring in 3 months presentence custody) for robbery and use imitation firearm;
• In 2016 he received 3.5 months for attempted robbery.

[10] Mr. Burke's past robbery convictions, coupled with transcripts tendered by the Crown, established a troubling pattern. The 1997 convictions relate to Mr. Burke's robberies of an equipment rental store, a video store, and a woman's purse. That court was advised that Mr. Burke developed a serious addiction to crack cocaine in late 1996, that he wanted to get help with his addiction, and that he sought substance abuse counseling while in presentence custody.

[11] The 2005 convictions pertain to a robbery of a sixty-seven year old woman while using violence, and to the theft of cigarette cartons from a convenience store. These offences were to feed his crack cocaine addiction. Counsel advised that court Mr. Burke had attended only four sessions of addiction counseling before relapsing and committing those crimes.

[12] The Crown, here, tendered a 2007 psychiatric report from Dr. Woodside, which assessed Mr. Burke's suitability for an LTO order. It disclosed that Mr. Burke was incarcerated at OCI in 2006, after receiving twelve months for these robbery and theft convictions. While at OCI, he was meaningfully assessed and substance abuse treatment was recommended. Mr. Burke reported his desire for help in changing and in beating his addiction. It is unclear, from the evidence, how long Mr. Burke remained at OCI and what treatment was offered him, following this assessment.

[13] A psychological risk assessment was done by Dr. Danto at Millhaven Assessment Unit, in August 2007. Mr. Burke's prognosis was poor, with a high risk for general recidivism and a moderately low risk for violent recidivism. Dr. Danto concluded that Mr. Burke "…demonstrated little with regard to how his future attempts at reintegration will diverge from prior failed attempts".

[14] As stated above, Dr. Woodside's psychiatric assessment was prepared in support of a Crown LTO application in 2007. To Dr. Woodside, Mr. Burke reported using crack cocaine since 1993 or so, and on a daily basis since November 2006. According to Dr. Woodside, Mr. Burke told him that he had "taken substance abuse programming on two occasions while incarcerated but acknowledged he had never sought out treatment in the community for his alcohol problems. He later indicated that he had attended PAARC in 2004 but did not complete treatment there".

[15] Dr. Woodside noted that "He [Mr. Burke] indicated all of his treatment had taken place in jail rather than in the community. He indicated that he had simply never really been interested in pursuing treatment once in the community". When asked why this time would be any different, Mr. Burke advised "I'm doing everything I can… I wasn't serious before…I've turned a new leaf".

[16] The assessment concluded that "Mr. Burke has received treatment for his substance dependence difficulties primarily while incarcerated in the past. He has made relatively few attempts at maintaining treatment once in the community although he did attend at the Peel Addiction Assessment and Referral Centre in 2004 and 2005. Unfortunately, he discontinued treatment there indicating that treatment conflicted with his work hours. He has been subject to probation orders requiring that he comply with assessment and treatment for substance abuse difficulties as requested by his probation officer but has not been active in pursuing this to any great extent." Dr. Woodside concluded there was room for optimism in Mr. Burke's case but, without extensive treatment, he was almost certain to re-offend.

[17] In 2008, Mr. Burke successfully resisted the LTO application. He was characterized, by the court, as motivated for treatment. For robbery and use imitation firearm, he received three years in the penitentiary less one year presentence custody, and a three-year probation order. The presiding justice ordered Mr. Burke to continue with in-house treatment as directed by his probation officer. There is no evidence before me as to what treatment he was offered and whether he participated in it.

[18] To assist the parties and court with this guilty plea, Dr. Julian Gojer prepared a psychiatric report on April 16, 2018. He diagnosed Mr. Burke as having a Personality Disorder with Antisocial Traits and Cocaine Dependence. Dr. Woodside, a decade ago, believed Mr. Burke was likely diagnosable with an Antisocial Personality Disorder, but lacked enough information to conclusively make this diagnosis. A diagnosis of Antisocial Personality Disorder, Dr. Woodside explained, would suggest that cocaine addiction is not the sole reason for Mr. Burke's criminal offending. However, the current evidentiary record does not explain what Dr. Gojer's diagnosis of Personality Disorder with Antisocial Traits means, in application to Mr. Burke. Therefore, I have not drawn any substantive inferences from it.

[19] Dr. Gojer's report, as well as a recent presentence report, thoroughly canvassed Mr. Burke's background information. Both show little community support around this man. He was raised in a loving and supportive family environment. However, both his parents are now deceased. Mr. Burke is unmarried. He has a thirty-two year old daughter, but has no contact with her. Mr. Burke has two living siblings but is truly close to only one – his sister, Marie, who has lived in Florida for decades.

[20] Despite this geographical separation, the two are close and she has attempted to support him when and how she could. The presentence report confirmed this relationship. Marie Burke, in speaking with the PSR author, described her brother as a "sweet man with a big heart" who got caught up with the wrong people. She added that most of Mr. Burke's family members have distanced themselves from him, due to his conflicts with the law, and that he "is basically on his own, now; everyone is gone".

[21] Mr. Burke has some education. He completed high school and attended a few months of drafting and architecture courses at Humber College before a teachers' strike directed his focus towards working. Since then, while not incarcerated Mr. Burke has been steadily employed. For example, Mr. Burke worked at a printing and publishing company for many years. He has packed and wrapped skis of merchandise. He has worked in factories. Because of his criminal record, Mr. Burke has to obtain work through temp agencies. This has resulted in Mr. Burke securing employment with a number of established waste management companies. He has worked in this field, when not in jail, for approximately fourteen years. He enjoys it and wants to return to it when free.

[22] As in prior assessments, Mr. Burke readily admitted to Dr. Gojer that he has been addicted to crack cocaine for many, many years. He advised he began using crack cocaine when he was thirty years old. He initially used crack in binges, smoking great amounts and then stopping. At first, he was able to balance his work life with these binges. But the financial cost of his crack habit became overwhelming by 1997 and he began to commit robberies to support the sheer volume of his drug habit.

[23] By 2016, Mr. Burke's paycheques largely served only to feed his addiction. He would buy $800 worth of cocaine and use it in one night. His living environment was fraught with dealers and users and the temptation to use. He could not stay clean.

[24] Dr. Gojer observed Mr. Burke to be desirous of substance abuse treatment. Past treatment efforts had been fruitless, Mr. Burke told Dr. Gojer, because back then he had not been "ready" for treatment:

Mr. Burke has done some programming while incarcerated. He completed a 90 day program for substance abuse in the past. He believes he had done other programming but cannot recall the name of the program. He said that he did not apply what he learned and was in denial when taking this programming, believing he was not in need of any help. After care was not offered to him. Currently he is attending AA and CA sessions. He recently completed a Drug and Alcohol Awareness Program through the John Howard Society on the 26th of January 2018. He is presently completing a course on Positive Lifestyle Program through the Salvation Army.

He has submitted applications to DARE, Harbour Light (waiting list), and Renaissance residential treatment centres. Mr. Burke is tired of his past lifestyle. He wants change in his life and realizes that he has wasted much of his adult life on drugs and people who do not care about him. Mr. Burke has been working with Access Point Housing with case management to secure better housing and reintegrate him into the community. He said that he would also be able to secure counseling through the same agency at no cost to him.

[25] While waiting for his case to resolve, Mr. Burke did actively reach out for treatment. He completed all twelve modules in the Salvation Army's Positive Lifestyle Program. The Chaplain, Major Steve Manuel, found Mr. Burke to show "insight, engagement, (and) self-direction". Mr. Burke was a "very active participant" in the weekly group discussions, which included a range of topics such as managing depression, stress, anger, loneliness, self-esteem, and loss and grief.

[26] Mr. Burke also completed the Drug and Alcohol Awareness Program (DAAP) with John Howard Society. He plans to remain in contact with John Howard Society, when released, for their help in managing relapse prevention. Mr. Burke has also completed two educational sessions while in custody, to assist with developing supportive relationships and with managing stress. This material demonstrates Mr. Burke has the ability to do well in treatment, if motivated.

Positions of the Parties

[27] Mr. Robbins ably argues that rehabilitation is not a closed door for Mr. Burke. He submitted the offences on his criminal record are getting less serious, as Mr. Burke ages. In the case at bar, it appears as though Mr. Burke wanted to get caught and, as Mr. Burke himself told one of the tellers, he was desperate. When clean and sober, Mr. Burke maintains stable work and he conducts himself in a prosocial way.

[28] The position of the defence is a reformatory sentence of two years less one day in addition to the equivalent of seventeen months presentence custody. Mr. Robbins submits would make Mr. Burke eligible to receive treatment at OCI Brampton, following which he would benefit from a maximum period of probationary supervision. Although Mr. Burke has received penitentiary sentences in the past, Mr. Robbins advised that treatment is not provided to Mr. Burke until the very end of those sentences, close to his release date. As a result, the penitentiary sentences are not working when it comes to providing Mr. Burke with the tools to avoid and manage relapse in the community.

[29] Mr. Mitchell, for the Crown, submitted that general and specific deterrence are paramount. So is the separation of Mr. Burke from society. A reformatory sentence will not serve those principles properly. The Crown seeks six years less presentence custody, which takes into account the absence of actual physical violence while recognizing the seriousness of the offences and the traumatization of the bank employees.

[30] In addressing rehabilitation, Mr. Mitchell, in a commendably respectful way, highlighted that on many past occasions, Mr. Burke has similarly asserted his readiness for change and to meaningfully participate in treatment. Despite these past assertions, at age fifty-five, Mr. Burke has yet to meaningfully engage in community-based treatment. Any realistic potential for rehabilitation, the Crown submits, is thus limited.

Applicable Sentencing Principles

[31] In formulating an appropriate sentence, I must balance the principles of sentencing applicable to this case. Here, I agree with the Crown that general and specific deterrence, the separation of Mr. Burke from society, and denunciation are paramount. Prior reformatory sentences have had little, if any, deterrent effect. Separation from society thus becomes a more prevalent principle in sentencing Mr. Burke. Over the course of decades, Mr. Burke has repeatedly been convicted of robbery. The sentence imposed here must separate him from society for a meaningful period of time.

[32] Respectfully, I do not agree that his offending is becoming less serious as he ages. Back in 2005, counsel characterized Mr. Burke's robbery of an older woman as "the lowest end of the realm of a robbery charge." Mr. Burke received eighteen months less presentence custody for a robbery of that nature. Eight bank robberies is far more serious, despite the fact that Mr. Burke was unarmed. The period of incarceration he serves, for committing these offences, must reflect this gravity.

[33] Even if Mr. Burke's prospects for rehabilitation were better, his sentence still must publicly communicate that the courts will not condone robbing banks and terrifying bank tellers. These current offences are serious and the sentence must achieve denunciation. On this evidentiary record, I must conclude that Mr. Burke's rehabilitative prospects are not strong, that both high reformatory and low penitentiary sentences are not deterring him, and that general deterrence and denunciation must receive significant weight.

Analysis of Aggravating and Mitigating Factors

[34] I must then weigh the aggravating and mitigating factors. I begin here by considering the impact on the bank employees, who are a particularly vulnerable class of victims. While only two victim impact statements were submitted to the court, there were eight robberies and the number of people victimized by Mr. Burke's crimes were far greater than two. One employee was pregnant and needed a medical assessment. Another left the profession entirely. No doubt each and every bank employee involved feared for their lives when Mr. Burke robbed them.

[35] Sentencing precedent recognizes a distinction between robberies committed while armed and the type committed here: see R. v. Dumesnil, [1977] O.J. No. 249 (C.A.) at para. 8. Mr. Burke's offending does fall on the lower end of that particular scale. I have no doubt that Mr. Burke rationalized committing these crimes because he was desperate to feed his addiction and because he did not intend to physically harm anyone. This matters not. His victims were terrified for their lives and Mr. Burke's actions will affect them psychologically for the rest of their lives. I find the impact on these victims to be an aggravating factor.

[36] The criminal record, too, is a seriously aggravating factor. It is trite that the contents of a criminal record cannot elevate a sentence beyond what would ordinarily be fit. But as our Court of Appeal held in R. v. Taylor (2004), 189 O.A.C. 388, at para. 39, a criminal record may hold insight into "the need for specific deterrence, the chances of successful rehabilitation, and the likelihood of recidivism". Repeated criminal conduct, the Court observed, may speak to the need to separate an offender from society. These comments are apposite to the case at bar. The record revealed another aggravating factor: Mr. Burke was on probation when he committed these offences.

[37] But I do not accept that Mr. Burke is entirely beyond rehabilitation, even though his outlook is bleak. The material before me, including Dr. Woodside's report, supports the conclusion that if Mr. Burke's addiction is treated, he becomes a far lower risk to re-offend. It is notable that Mr. Burke has balanced his decades-long crack addiction with a stable work history when not incarcerated. This is, I find, an unusual circumstance and it shows me that something positive still exists in Mr. Burke that wants prosocial structure and stability.

[38] While awaiting sentencing, Mr. Burke took counseling and arranged a support network for relapse prevention. It may very well be the case that he did this to better his situation in sentencing. That said, he did well in that counseling. He showed insight, he showed initiative, and he was an active participant during sessions, no matter why he engaged in it.

[39] The final factor that I take into account is that Mr. Burke has pled guilty to these four offences, while admitting the facts of all eight. He has taken responsibility for his actions. When he addressed the court, he expressed remorse and regret. I do accept this remorse as genuine. His words in court were corroborated by his words to the bank teller during the final robbery. He said that he was sorry, and that he was desperate.

[40] While recognizing the significance of a guilty plea, Mr. Mitchell submitted the Crown case was so overwhelming that Mr. Burke was left with no choice but to plead. The strength of the evidence is beside the point. Mr. Burke has the constitutional right to have a trial, no matter if the evidence against him was strong or weak. He waived that constitutional right. Because of his plea, none of the bank tellers will have to testify in court, be cross-examined, and re-live the events of the robberies. They can, as best as they can, put this matter behind them.

[41] The guilty plea inures significantly to Mr. Burke's credit. Given that Mr. Burke instructed his counsel, back in November 2017, to assist him with a guilty plea, I consider this to be an early guilty plea. No preliminary hearing dates were set, and the delay from November to May was time required for final negotiations and to obtain Crown and defence sentencing materials. Mr. Burke's instructions to plead guilty never wavered during this time.

Analysis and Conclusions

[42] Both parties agreed that society requires protection from Mr. Burke re-offending in the future, but disagreed on what mechanism would achieve that. Mr. Robbins argued that the reformatory system, including meaningful treatment, would best protect society. Penitentiary sentences "are not working", because in that system, Mr. Burke only receives counseling near the end of his sentences. He is then released without in-depth meaningful treatment. He maintains stability, based on his own willpower, in the community for awhile. He then relapses. Mr. Robbins submits that a reformatory sentence, meaningful treatment at OCI if accepted, and a treatment-based probation order will break this historical pattern.

[43] I accept what Mr. Robbins says about Mr. Burke's treatment in the federal system being too little and too late. But I respectfully disagree that I should impose a reformatory sentence based on the penitentiary system's failure to provide meaningful treatment during past sentences. Doing so would, in my view, over-emphasize rehabilitation and render the sentence entirely unfit. Rehabilitation cannot play an important role in fashioning this sentence.

[44] In addition, although Mr. Robbins is entirely right that the federal system is not working, none of the alternatives are working either. Mr. Burke has been on probation, he has been to the reformatory, he has been to OCI, he has received conditions to obtain in-house treatment, and he has been to the penitentiary. I do not see a reformatory sentence as presenting a solution that has not been tried before.

[45] By my count, Mr. Burke has been sent to the reformatory at least twenty times. Reformatory sentences are not deterring him. There is no compelling evidence that this time would be different. Further, Dr. Gojer's report establishes Mr. Burke will receive addictions counseling and community supervision in either system:

His sentence, if in the penitentiary will involve substance use programming and further monitoring in the community while on parole. If given a provincial sentence, then OCI Brampton has a good program that he can avail of.

[46] While in my view a reformatory sentence is inappropriate in this case, as stated previously, I am not convinced Mr. Burke is entirely beyond rehabilitation. I see a faint light still at the end of that tunnel. Mr. Burke's sentence must reflect the aggravating factors here. It must primarily effect the sentencing principles discussed. Yet I am hopeful the sentence I impose will not extinguish that light.

[47] Balancing the mitigating and aggravating factors, and applying the principles of general and specific deterrence, denunciation, and separation from society as paramount, I am imposing a sentence of five years less presentence custody of seventeen months. Mr. Burke has served three hundred and forty-four days since his arrest, which is the enhanced equivalent of five hundred and sixteen days, or seventeen months, time served. After reducing seventeen months from the sentence, this leaves Mr. Burke with three years and seven months left to serve.

[48] Given that these bank robberies were committed during a short period of time and properly characterized as a spree, the other counts will reflect the same sentence, to be served concurrently.

[49] Finally, Mr. Burke should understand that after reviewing the prior transcripts and Dr. Woodside's report, in combination with his criminal record, I felt six years in the penitentiary was an entirely fit sentence for the current bank robberies. I reduced that figure to five years to credit the early guilty plea and the slight rehabilitative hope that still remains if treatment can be achieved.

Released: July 6, 2018

Signed: Justice Heather Pringle